Editorial: What's riding on 'Obamacare' decision? Only everything

Tuesday

Mar 27, 2012 at 12:01 AMMar 27, 2012 at 12:44 AM

Arguments began yesterday and will continue today and tomorrow regarding the fate of the Patient Protection and Affordable Care Act of 2010, aka "Obamacare." The implications are enormous, and in an election year at that.

What's riding on ObamaCare decision? Only everything

Arguments began yesterday and will continue today and tomorrow regarding the fate of the Patient Protection and Affordable Care Act of 2010, aka "Obamacare." The implications are enormous, and in an election year at that.

At stake are everything from health care access for some 30 million uninsured Americans to how much muscle government gets to flex regarding its control over our lives, from state sovereignty on arguably a host of issues - education, transportation, the environment - to Uncle Sam's ability to tax for many services. This Supreme Court must be mighty careful, for this is a potential minefield of unintended consequences. But then they knew that when they took the case last November.

Twenty-six states and the National Federation of Independent Business have brought the matter to the high court's attention. The first day's arguments revolved around whether it's premature for the justices to weigh in, based on an 1867 law that says a tax can't be challenged until it has first been collected. Much of the implementation in Obamacare, including the "individual mandate" that would force citizens to purchase health insurance or pay a penalty, does not occur until 2014. Taking this route would represent the "punt" option, which would seem unlikely, as if the White House and private litigants agree on anything, it's that they want the court's direction, now. The American people deserve clarity here.

Today the most controversial element of the plan and its primary funding mechanism, that individual mandate, is on tap. A third issue to follow is whether the law's expansion of Medicaid is an undue burden on the states.

There are many questions at the heart of this case that merit answers. Does the Commerce Clause give Congress free rein to regulate not only interstate economic activity but, in this case, economic inactivity? If so, and Uncle Sam can force you to buy health care insurance, what else can he compel you to do or purchase? Yogurt instead of ice cream? In America do we have a "legislature of limited powers," according to one law professor quoted in the Wall Street Journal, or one in which there is no end to its reach? In a couple of interesting sidebars, are liberals who frequently find themselves advocating for "choice" arguing that citizens should have none where health insurance is concerned? Conversely, are those conservatives who so often deride "free riders" abetting that very thing if Obamacare is overturned?

Is the individual mandate and its accompanying penalty a tax, or is it not? In any case this is dangerous territory, because if the court majority decides this particular tax for this particular service is no can do, then what of all the other taxes that, in the words of Justice Stephen Breyer, "are, for better or worse, the life's blood of the government"?

If Obamacare is a violation of the 10th Amendment and state sovereignty, what's that mean for any number of sweeping federal laws passed in the last several decades? Might a 1964 Civil Rights Act be in the cross hairs? Unlikely? OK, how about a Clean Water Act? To insist this is a narrow ruling that has little impact elsewhere could prove quite the challenge.

If this Medicaid expansion crosses the line, can no strings be attached to federal dollars showered upon the states? If so, might dollars for everything from health care to transportation begin to dry up as a result? If this legislation is reversed on its unique structure, and not on the constitutionality of government involved in health care generally, might it eventually lead to a conclusion some would consider more objectionable, such as a single payer system? If the court rules that the federal government has no business in this arena, does it open the door instead to multiple Obamacares someday being created across the country, a la Massachusetts?

The court could uphold the law's constitutionality here, toss the whole thing, or part of it, though if the latter and it's the individual mandate, it would be effectively neutered. If either of the last two, what happens to the millions of uninsured? What of those with pre-existing conditions who again have had the rug pulled out from under them? What does a split Congress that can't seem to agree on much of anything do then?

Will there be a political price that ends up making the winner here the loser, or vice versa? On the one hand, the latest poll by the New York Times and CBS News has 47 percent of Americans disapproving of Obamacare, with 36 percent on the other side, in a split that is starkly partisan. On the other, no doubt the Obama administration has prepared itself for either eventuality, eager to laud on the campaign trail his leadership in passing landmark and constitutionally permissible legislation that presidents before him could not, or running as the only person standing between America and a more conservative Supreme Court that found even greater access to health care unconstitutional.

A ruling is expected from the court in late June, just as the campaign season is beginning to heat up. To say there is a lot riding on this decision is the understatement of the century so far. No pressure, though.

Just a wish that this not be another 5-4 decision, which could make all hell break loose.

Peoria, Ill., Journal Star

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.